Bombay High Court
M/S. H. B. And Associates And Ors vs State Of Maharashtra And Anr on 18 April, 2023
Bench: Amit Borkar
2023:BHC-AS:11874
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Ghuge
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.4121 OF 2022
M/s. H.B. & Associates & Ors. ... Petitioners
V/s.
State of Maharashtra & Anr. ... Respondents
Mr. Uzair Kazi with Ankita Sharma i/b YMK Legal for
the petitioners.
Mr. Karishni Khanna with Mr. Twinkle Gadhiya i/b
Pritest Burad Associates for respondent No.2.
Mr. Arfan Sait, APP for the State.
CORAM : AMIT BORKAR, J.
DATED : APRIL 18, 2023
P.C.:
1. Challenge in this petition is to the order of Revisional Court
confirming order of issuance of process in a complaint under
Section 138 of the Negotiable Instruments Act, 1881.
2. Principal submission of the petitioner is that the cheque in
question had been presented on 15th October, 2013. The date of
cheque was 15th July, 2013. As per proviso (a) of Section 138 of
the Negotiable Instruments Act, 1881, the cheque needs to be
presented to the drawee bank within three months from the date
of cheque. Considering the aforesaid dates, according to the
petitioner 15th October, 2013 would be beyond the limitation
prescribed under proviso (a) to Section 138 of the Negotiable
Instruments Act, 1881 as 15th July, 2013 needs to be included
within the expression of three months.
15-wp4121-2022.doc
3. Learned advocate for the complainant invited my attention
to the Judgment of Apex Court in the case of Rameshchandra
Ambalal Joshi Vs. State of Gujarat and Anr, reported in AIR (2014)
SC 1554, wherein the Apex Court was considering the proviso (a)
to Section 138 of the Negotiable Instruments Act, 1881 to interpret
expression "six months from the date on which it is drawn". The
Apex Court in paragraph No.21 and 26 of the said judgment held
as under :-
21. Proviso (a) to Section 138 of the Act uses the expression
"six months from the date on which it is drawn". Once the
word 'from' is used for the purpose of commencement of
time, in view of Section 9 of the General Clauses Act, the day
on which the cheque is drawn has to be excluded.
26. Drawing a conclusion from the abovementioned
authorities, we are of the opinion that the sue of word
"from" in Section 138(a) requires exclusion of the first day
on which the cheque was drawn and inclusion of the last day
within which such act needs to be done. In other words, six
months would expire one day prior to the date in the
corresponding month and in case no such day falls, the last
day of the immediate previous month. Hence, for all
purposes, the date on which the cheque was drawn, i.e.,
31.12.2005 will be excluded and the period of six months
will be reckoned from the next day i.e. from 1.1.2006;
meaning thereby that according to the British calendar, the
period of six months will expire at the end of 30th day of
June, 2006. Since the cheque was presented on 30.6.2006,
we are of the view that it was presented within the period of
prescribed.
4. Conspectus of the decision in the case of Rameshchandra
Joshi (supra), is that the first date on which the cheque was
withdrawn needs to be excluded and period of three months needs
be reckoned from the next day i.e. from 15th July, 2013.
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5. It is not in dispute that by notification issued by Reserve
Bank of India, the period of six months has been reduced to three
months with effect from 1st April, 2012. If period of three months
as required under proviso (a) to Section 138 is reckoned from next
day, the date of presentation with drawee bank being 15 th October,
2013 would bring presentation of cheque within limitation.
Therefore, in my opinion, there is no error in passing order of
issuance of process. The writ petition stands dismissed. No costs.
(AMIT BORKAR, J.)
